Environmental Law in BC FAQs about Contaminated Sites and Certificates of Compliance

FAQs about Contaminated Sites and Certificates of Compliance


Naomi R. Rozenberg, Associate
Phone:  604-685-3911
Email: nrr@lmlaw.ca



If you were involved in the remediation of a contaminated site, you should consider obtaining a certificate of compliance for the property. Similarly, if you are contemplating the purchase of a remediated property, you may wish to request a certificate as assurance that the contamination has been remediated.

We have compiled a list of frequently asked questions regarding certificates of compliance. We hope this information assists you in determining whether a certificate is necessary.

1.         What is a certificate of compliance?

A certificate of compliance is an instrument issued by the Ministry of Environment which certifies that a contaminated property has been satisfactorily remediated to meet the applicable standards set by the Environmental Management Act (“EMA”) and the Contaminated Sites Regulation (“Regulation”).

2.         What information is found in a certificate of compliance?

The certificate of compliance will typically identify the types of substances for which remediation has been satisfactorily completed and for which the certificate is valid.

It will also describe the standard to which the property has been remediated. There are two general types of standards:

  • Numerical standards are the generic standards applied to properties based on their land use. These standards are used to determine whether a property is contaminated.
  • Risk-based standards are a site-specific standard determined for a particular property. These standards are based on risk levels to human health and ecological receptors (such as plants and wildlife) from exposure to substances at contaminated sites.

A property that is remediated to a numerical standard is no longer considered a contaminated site. If the remediation is completed to risk-based standards, the property is still considered a contaminated site but the impacts of the contamination have been managed such that the risks to human health and ecological receptors are deemed low.

3.         What are the benefits of a certificate of compliance?

A certificate of compliance is an effective means of preserving the value of a contaminated property that was remediated.

The issuance of a certificate may also exempt a person from future responsibility for remediation of a contaminated site. For example, you are the owner of a commercial property which was contaminated with hydrocarbons. You remediate the property and obtain a certificate of compliance. In that case, pursuant to section 46(1)(m) of the EMA, you are not responsible for future remediation if another person subsequently changes the use of the contaminated site (i.e. to residential use) and provides additional remediation.

In other words, section 46(1)(m) protects a person who was a responsible person in relation to a remediated contaminated site for which a certificate of compliance was issued and someone then changes the use and further remediates the property.

The court in J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc. explained that if a polluter wishes to limit its liability for remediation costs in the future, then the manner of doing so is through obtaining a certificate of compliance as contemplated by the EMA.[1]

4.         Are there any disadvantages to obtaining a certificate of compliance?

Yes, possibly. If your property was contaminated by migration from an adjacent property, the owner of the adjacent property is responsible for the costs associated with remediation. You may want to leave open the possibility of changing the use of your property, providing further remediation, and pursuing the owner of the adjacent property for the additional costs. If you have already obtained a certificate of compliance, the owner of the property that was the source of contamination would likely not be responsible for the cost of the further remediation.

5.         How do I apply for a certificate of compliance?

The process for obtaining a certificate of compliance is outlined in section 53 of the EMA and section 49 of the Regulation.

An application must be submitted in writing to the Director. The Director is an employee of the Ministry who has delegated authority to implement the EMA, its various regulations, and related policies.

The application must provide certain information, including:

  • preliminary and detailed site investigation reports;
  • a remediation report which describes sampling and analyses carried post-remediation;
  • evidence of compliance with all conditions set by a Director, if an approval in principle was issued prior to remediation; and
  • the quality and performance of remediation measures on completion of remediation, including compliance with specific remediation standards, criteria or conditions.

6.         Will the Ministry issue a certificate of compliance?

Once the Director is satisfied that a contaminated site has been duly remediated, the Director may issue a certificate of compliance for the property.

The Director will typically issue a certificate of compliance if the contaminated site has been remediated in accordance with:

  • the numerical or risk based standards prescribed for the purposes of the definition of “contaminated site”,
  • any orders under the EMA,
  • any remediation plan approved by the Director, and
  • any requirements imposed by the Director.

The Ministry may also issue a certificate if a plan has been prepared for the purposes of containing, controlling and monitoring any substances remaining on the site and works have been installed to implement the plan.

The Director may require security (such as real or personal property) in a particular amount. There may also be a requirement that a restrictive covenant be registered on title of the property. These requirements are typically only in situations where a contaminated site has not been remediated to numerical standards.

Failure to comply with the Director’s requirements, protocols and guidances may result in the director not approving the certificate of compliance.

7.         How long does it take to receive a certificate of compliance?

The time it takes to obtain a certificate of compliance varies, and depends on the type of certificate requested. Once an application for a certificate has been received by the Ministry, for certificates issued under the numerical standards it usually takes a few weeks. For certificate requests where risk-based standards are used, it can take up to a year and sometimes longer.

8.         Are there limitations to a certificate of compliance?

Yes. A certificate of compliance is usually qualified by certain requirements and conditions specified in the attached schedules. It is important to review the certificate carefully to confirm the geographic scope, i.e. if it applies to the entire contaminated site or only a portion.  It may also be subject to certain conditions or qualifications. The certificate might also be limited to certain types of substances. If you are considering the purchase of a property for which a certificate of compliance was issued, you may wish to obtain an environmental assessment of the property to rule out the presence of other types of contaminants that are not mentioned in the certificate.

9.         Are there any alternatives to a certificate of compliance?

Owners of contaminated residential properties typically do not want to incur the time and expense of obtaining a certificate of compliance. Instead, they opt to retain an environmental engineer to perform a site investigation, remediate the property, and prepare a report indicating that the property has been remediated in accordance with certain statutory standards and further remediation is not necessary or recommended.

In most cases, a subsequent purchaser of the property will accept this type of report as assurance that the property is no longer contaminated. However, the report does not provide the same protection and possible exemptions from future remediation costs.

WHAT WE DO:  Lesperance Mendes has been advising property owners and others on environmental law since 1997.  If you are dealing with a contaminated site or other environmental law issue, please contact Robert Lesperance, Partner, at 604-685-8737 or rjl@lmlaw.ca or Naomi Rozenberg, Associate, at 604-685-3911 or nrr@lmlaw.ca.

THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on upon without independent legal advice.

[1]                 2014 BCSC 1619, affd 2015 BCCA 472 (B.C.C.A.) at para. 50.